Withdrawal of highly skilled migrant permit
Withdrawal of highly skilled migrant permit
Why and what can you do?
Dutch immigration law, as codified in the Aliens Act (Vreemdelingenwet 2000) and the Aliens Decree (Vreemdelingenbesluit 2000), delineates the criteria for the granting, denial, and revocation of residence permits for foreign nationals within the Netherlands. The highly skilled migrant (kennismigrant) visa is a frequently utilized permit by expatriates seeking employment in the country. This permit is subject to specific conditions, and failure to adhere to these conditions may result in its withdrawal. The following are common grounds for the revocation of a highly skilled migrant residence permit:
- Acquisition of the residence permit through fraudulent means: This often arises in situations involving payroll companies where the highly skilled migrant ostensibly pays their own salary for a fictitious position.
- Failure to maintain primary habitual residence within the Netherlands: Residence outside of the Netherlands for a period exceeding eight months consecutively may be a ground for withdrawal.
- Failure to meet the requisite salary level: This includes instances where the highly skilled migrant's remuneration falls below the stipulated threshold, or if the salary is not disbursed in a timely manner each month.
- Loss of recognized sponsor (erkend referent) status by the employer: If the employing entity no longer holds the status of a recognized sponsor, the highly skilled migrant's permit may be jeopardized.
- Engagement in self-employment activities that entail business risks, determination of his/her own salary, and ownership of 25% or more of the company's shares: Such activities may contravene the conditions of the highly skilled migrant permit.
Should the IND initiate proceedings following an investigation, the following sequence of events typically ensues:
- Voornemen (Intention to Withdraw): The IND issues a formal notification of its intention to withdraw the residence permit. The individual is afforded an opportunity to provide an explanation of the situation and to present arguments against the proposed action.
- Beschikking (Formal Decision): The IND renders a formal decision regarding the withdrawal of the residence permit, which often carries retroactive effect.
- Besluit (Decision on Objection): In the event that an objection (bezwaar) is lodged, the IND will reassess the case and issue a final determination.
- (Hoger) Beroep (Appeal to the Court): The individual retains the right to appeal the IND's decision to the court.
Practical Considerations and Potential Consequences
It is generally advisable to resolve these legal proceedings as expeditiously as possible, as the duration of these processes can increase significantly at each subsequent level. Furthermore, in cases where the highly skilled migrant's employment contract is of a fixed duration, the pendency of the legal proceedings may affect the employer's willingness to extend the contract. Of particular concern is the potential for the mishandling of a case that could result in the withdrawal of residence permits for the family members of the highly skilled migrant, as well as the creation of a "residence gap" (verblijfsgat). A residence gap invalidates the continuous residence record, potentially requiring the individual and their family to re-establish the five-year residency requirement for long-term residence or naturalization purposes.
Legal Assistance
Individuals facing such situations are encouraged to seek legal counsel. Amice Advocaten offers assessment and advice on navigating these complex matters. Our legal team can assess your case and advise the best way to cope with it.
W: https://www.amice-advocaten.nl/
T: +31 (0)30 2300 230
A: Maliebaan 74 3581 CV Utrecht